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DrugWarRant.com, the longest running single-issue blog devoted to drug policy, is published by the Prohibition Isn't Free Foundation
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March 2006
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First, they came for…

OK, folks. It’s no longer tin-foil hat territory (it really hasn’t been for some time, but now it’s getting painfully obvious). What’s left of the Fourth Amendment (and thus our freedom) is in serious jeopardy. This is not a partisan issue. It’s not Republican or Democrat, liberal or conservative. We must, as Americans, rise up and stop the current administration from destroying the last vestiges of our Fourth Amendment rights.
To recap (in very simple terms — there’s plenty to read elsewhere if you want more detail):

  • In the 1970’s, Congress passed the FISA act — basically to insure that no administration would spy on Americans without some oversight (to prevent abuse), while giving the administration expansive powers to spy on certain individuals (including Americans who are in contact with foreign powers). FISA created a secret Court, and the ability to wiretap without getting the warrant until 72 hours later.
  • The Bush administration, without Congressional or Court approval (and in fact while publicly pretending to go along with crafting changes to FISA for years), chose to break/ignore the law, and now claims that it is not subject to the law.
  • The Bush administration has admitted to carrying out one specific program that does not comply with FISA, related to communications between U.S. citizens and foreigners, where either is suspected of being a terrorist or providing aid to terrorism. The administration refuses to state whether there are other programs in place that are also in violation of FISA or the Fourth Amendment. The administration also refuses to define the scope of their targeting ability (ie, what is the definition of “aid to terrorism”)
  • Last night, a U.S. News and World Report article was released online that speculates that the administration has also been doing warrantless physical searches of property of U.S. citizens. The article specifically reports on meetings that discussed that very topic (and Attorney General Gonzales has danced around the questions in such a way as to make it almost a surety that this activity is happening.) At least one defense attorney representing a suspect is sure that he was the target of warrantless clandestine searches.
  • Rather than investigate and discover the full extent of the programs, Congress has avoided dealing with it. Most recently, Senator Mike DeWine has proposed a bill that would legalize the administration’s actions. Not only that, it would replace review by Courts with review by a small group of Senators who would be prohibited by law from doing anything about any abuses they found. Additionally, the law would allow the results of warrantless searches to be used as the evidence to obtain a secret legitimate warrant through FISA (see analysis), making a mockery of the Court oversight system.

Now why should I care? I’m not a terrorist. What do I have to worry about?
Well, if you think that the administration is only going to use this power against al-Qaida, then you’re living in a dream world. Remember the fact that the Coast Guard spent more tax dollars last year fighting the war on drugs than has been spent in total on port security since Sept. 11? Remember all the armed federal agents that went after sick people in California using medical marijuana shortly after the Anthrax attacks when we didn’t yet know who had committed that act of terrorism? (Who did they end up catching for the anthrax, anyway? I’ve forgotten.) Remember the TV and print ads that said if you use drugs, you’re providing aid to terrorists? Ever notice how often the government uses the word “narcoterrorists”?
So let’s just suppose that an administration wanted to prop up public opinion in its failing drug war. And let’s suppose that an administration got annoyed by certain web sites that keep pointing out the problems with the drug war. And let’s suppose that an administration unilaterally decided that those certain web sites were “aiding” narcoterrorists by printing stories of the drug war’s failures (after all, they would have the sole determination of the definition of “aiding” with no possibility of Congressional or Court over-ruling, even though we know it’s the drug warriors that aid narcoterrorists.) Well, then, it’s not a hard stretch to envision secret searches of homes that end up “finding” evidence that can’t be challenged in court because the methods were classified top secret.
Not, of course, that I assume that the current administration would do such a thing — they assure us that they have only honorable intent. But such destruction of rights sets long-term precedence.
Sure, we’re used to being paranoid. Those involved in studying the drug war are more aware than most U.S. citizens of how the Fourth Amendment has been eroded in the name of the war on drugs. Now, maybe more of the country will be willing to wake up.
Remember, the Fourth Amendment isn’t there to protect terrorists or drug dealers. The Fourth Amendment is there to protect Americans. It says that our bodies and our property are not vassals of an autocratic government to be inspected or taken at its whim. Rather we are free people, secure in our possessions, and such freedom cannot be trampled upon without extraordinary reason nor without oversight to prevent governmental abuse.
To those who say that we must sacrifice our Fourth Amendment rights to protect against terrorists, we must respond that it is simply not an option. Instead, perhaps the government will have to learn how to be competent.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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